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Mealey's Elder Law

  • May 22, 2019

    8th Circuit Denies Retiree Plaintiffs’ Motion To Rehear Vesting Decision

    ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on May 16 denied a petition for rehearing en banc, refusing to reconsider its decision that a class of retirees’ health benefits were not vested as a matter of law (Augustine Pacheco, et al. v. Honeywell International Inc., Nos. 18-1006 and 18-1294, 8th Cir.).

  • May 22, 2019

    Panel Remands For Award Of Attorney Fees In Family Dispute Over Will’s Assets

    SEATTLE — In the third appeal in a family dispute over assets to a will, a Washington appeals panel on May 20 remanded to a lower court to award reasonable attorney fees for work that preserved a claim against two family members for their alleged undue influence over a decedent to change ownership of five insurance policies (In the matter of the estate of William Ross Taylor; Patricia Caiarelli v. Reuben Taylor Jr., et al., No. 76444-6-I c/w 76840-9-I, Wash App., Div. 1, 2019 Wash. App. LEXIS 1285).

  • May 22, 2019

    Ohio Panel:  Court Did Not Abuse Its Discretion In Granting Grandparents Visitation

    LIMA, Ohio — An Ohio appeals panel on May 20 held that a lower court did not abuse its discretion in granting a paternal grandfather and step-grandmother visitation time in accordance with Shelby County, Ohio, Local Rule 22 over the mother’s objection, finding that the lower court “gave the requisite consideration” to the concerns expressed by the mother at the final hearing (In Re: A.B. C.G., No. 17-18-09, Ohio App., 3rd Dist., 2019 Ohio App. LEXIS 2013).

  • May 21, 2019

    California Jury Awards $42.5 Million For Facility’s Overmedication Of Resident

    SACRAMENTO, Calif. — An assisted living facility was hit with a $42.5 million jury award on April 25 for elder abuse of a short-term resident that led to her death, which included a $35 million punitive damage award for knowingly overmedicating the decedent repeatedly (Barbara Lovenstein, et al. v. Eskaton Fountainwood Lodge, et al., No. 34-2012-00135467, Calif. Super., Sacramento Co.).

  • May 21, 2019

    North Dakota High Court Says Appellant Must Pay Estate’s Attorney Fees

    BISMARCK, N.D. — The North Dakota Supreme Court on May 16 upheld a probate court’s ruling ordering an appellant to pay from his portion of an estate the attorney fees incurred by the personal representative for proceedings that occurred after the action was remanded by the high court, holding that the lower court had the authority to do so (In the Matter of the Estate of Arline H. Hogen, No. 20180325, N.D. Sup., 2019 N.D. LEXIS 123).

  • May 20, 2019

    Texas Panel Vacates Personal Guardianship Order For Lack Of Jurisdiction

    HOUSTON — A Texas appeals panel on May 16 vacated a lower court’s personal guardianship order for lack of jurisdiction and remanded, finding that the lower court had no jurisdiction to enter the order because the application supporting the order failed to comply with Texas Estates Code Sections 1051.103(a)(1) and (a)(5) (In the Guardianship of Bobby Charles Gafford, an incapacited person, No. 17-00634, Texas App., 1st Dist., 2019 Tex. App. LEXIS 4002).

  • May 16, 2019

    Nebraska Panel Affirms Finding Of Need For Conservator But Not For Guardian

    LINCOLN, Neb. — The Nebraska Court of Appeals on May 7 found that a trial court did not err in finding that a conservatorship was necessary for a widowed octogenarian but that a guardianship was not, saying there was not “clear and convincing” evidence that she was incapacitated (In re Guardianship and Conservatorship of Inez Natalia Stierstorfer, No. A-17-1232, Neb. App., 2019 Neb. App. LEXIS 131).

  • May 16, 2019

    Retired California Judges Sue Chief Justice, Claim Lost Work, Age Discrimination

    SAN FRANCISCO — Three retired California superior court judges on May 9 sued the Judicial Council of California and the state’s chief justice for age discrimination, alleging that they “arbitrarily” capped the number of days a retired judge can work as a fill-in to plug judicial vacancies around the state (Glenn Mahler, et al. v. Judicial Council of California, et al., No. CGC-19-575842, Calif. Super., San Francisco Co.).

  • May 16, 2019

    California Panel: Exclusion Of Rebuttal Testimony Not In Error In Elder Abuse Case

    LOS ANGELES — A California appellate court on May 2 affirmed a trial court’s denial of a motion for a new trial after a jury rejected an elderly woman’s claim of elder abuse while she was staying at a skilled nursing facility, concluding in an unpublished opinion that there was no error by the court in not allowing an expert witness to be recalled in rebuttal (Linda Kuwata, et al. v. Camarillo Community Care, Inc. et al., No. B290539, Calif. App., 2nd Dist., Div. 2, 2019 Cal. App. Unpub. LEXIS 3114).

  • May 16, 2019

    Michigan Majority Remands To Determine Validity Of Decision To Deny Medicaid

    LANSING, Mich. — A majority of the Michigan Supreme Court on May 9 vacated three administrative law judges’ decisions to uphold the Department of Human Services’ denial of Medicaid applications from “institutionalized spouses” and remanded to determine the validity of the denials, finding that the fact that an irrevocable trust that includes former assets of an institutionalized spouse can make payments to a community spouse does not automatically render the trust assets countable for the purpose of an initial Medicaid eligibility determination (Ralph D. Hegadorn v Department of Human Services Director, et al., Nos. 156132, 156133 and 156134, Mich. Sup., 2019 Mich. LEXIS 827).

  • May 16, 2019

    Man Sentenced For Submitting Bills For Unnecessary Genetic Testing For Elders

    TRENTON, N.J. — A federal judge in New Jersey sentenced a man to 50 months in prison on May 13 after he pleaded guilty to one count of conspiracy to commit health care fraud and admitted using a nonprofit organization to convince elderly patients to undergo unnecessary genetic testing and submitting the bills to Medicare (United States v. Seth Rehfuss, No. 18cr134, D. N.J.).

  • May 16, 2019

    Judge Dismisses UCL, FAL Claims Related To AARP’s Endorsement Of Policies

    LOS ANGELES — A California federal judge on May 14 granted a motion filed by insurers to dismiss claims for violations of California’s unfair competition law (UCL) and false advertising law (FAL) in relation to the marketing and endorsement of insurance policies, holding that they failed to meet the particularity requirements under Federal Rule of Civil Procedure 9(b) and that an alleged implied representation on the endorsed products was not an actionable representation (Simon Levay, et al. v. AARP Inc., et al., No. 17-09041, C.D. Calif., 2019 U.S. Dist. LEXIS 81338).

  • May 15, 2019

    Judge: Couple Can Pursue Financial Elder Abuse Claim For Cryptocurrency Investment

    SAN DIEGO — A federal judge in California on May 13 dismissed without prejudice an elderly couple’s claim that a man violated the Securities and Exchange Act when instructing them to invest their savings into a cryptocurrency Ponzi scheme but found that they could pursue claims for financial elder abuse and violation of California law for unlawfully acting as a broker and investment adviser without the required licensure (Tommy Garrison, et al. v. Reginald Buddy Ringgold III, et al., No. 19cv244-GPC, S.D. Calif., 2019 U.S. Dist. LEXIS 80643).

  • May 15, 2019

    Assisted Living Facility Moves To Dismiss Former Resident’s Negligence, Contract Suit

    PROVIDENCE, R.I. — An assisted living facility accused of negligence and breach of contract for allegedly failing to administer a resident’s medication for more than a year as contracted on May 1 moved in Rhode Island federal court to dismiss and to compel arbitration (Kara Biller, et al. v. S-H OPCO Greenwich Bay Manor, LLC, et al., No. 19-233, D. R.I.).

  • May 13, 2019

    Ohio Panel Majority: State Medicaid Department’s Claim To Estate Had Priority

    DAYTON, Ohio — A 2-1 Ohio appellate panel on May 10 affirmed a probate court’s ruling that a lien placed by the Ohio Department of Medicaid (ODM) on a woman’s property after her death was valid and that its claim against her estate should be paid before one submitted by the nursing facility where she lived before her death, holding that post-death liens are valid under state law and that Ohio’s Medicaid Estate Recovery Program allows ODM to recover its claims before the nursing home (R.C. Wiesenmayer, et al. v. Helen Catherine Vaspory, et al., No. 27931, Ohio App., 2nd Dist., Montgomery Co., 2019 Ohio App. LEXIS 1880).

  • May 13, 2019

    Judge Finds North Dakota Can Have More Restrictive Medicaid Requirements

    MINOT, N.D. — A federal judge in North Dakota on May 6 dismissed a trustee’s lawsuit arguing that the state cannot impose stricter requirements for Medicaid eligibility and seek trust assets as part of a deceased man’s estate, holding that North Dakota is a Section 209(b) state under the Supplemental Security Income for the Aged, Blind, and Disabled Act (SSI) (Mary Todd v. Christopher D. Jones, No. 18-cv-150, D. N.D., 2019 U.S. Dist. LEXIS 77361).

  • May 13, 2019

    U.S. Supreme Court Won’t Hear Appeal Of Bias Claims By Former Postal Supervisor

    WASHINGTON, D.C. — The U.S. Supreme Court on May 13 denied a petition for a writ of certiorari filed by a former postal supervisor whose claims of bias after he was demoted for inputting work time on a subordinate’s time card when that employee was actually absent were rejected by the Seventh Circuit U.S. Court of Appeals (Robert E. Young v. Megan J. Brennan, No. 18-8684, U.S. Sup.).

  • May 13, 2019

    Split Louisiana High Court: Granddaughter Not A Claimant Under Malpractice Act

    NEW ORLEANS — A decedent’s granddaughter isn’t a “claimant” under the Louisiana Medical Malpractice Act (MMA), and so her timely complaint of medical malpractice did not suspend prescription when it came to the claims of the decedent’s sons, a split Louisiana Supreme Court ruled May 8 (James E. Guffey, et al. v. Lexington House, LLC, No. 2018-CC-1568, 2019 La. LEXIS 1370).

  • May 13, 2019

    Divided 4th Circuit Affirms Ruling That Nursing Facility Violated Care Guidelines

    RICHMOND, Va. — A 2-1 panel of the Fourth Circuit U.S. Court of Appeals on May 8 upheld a ruling from an appellate board of the U.S. Department of Health and Human Services (HHS) that a skilled nursing facility failed to comply with federal regulations for the quality of care it provides to patients, holding that the board did not act arbitrarily or capriciously when finding that the facility did not take proper actions when caring for a 62-year-old patient who needed his teeth extracted (Putnam Center v. United States Department of Health & Human Services, No. 18-1256, 4th Cir., 2019 U.S. App. LEXIS 13770).

  • May 13, 2019

    Pennsylvania Panel Says Court Abused Discretion In Guardian Row, Orders New Hearing

    PITTSBURGH — An orphans’ court twice abused its discretion in its haste to resolve a family’s guardianship dispute, excluding potentially relevant evidence, a Pennsylvania appellate court said April 22 in remanding the case with instructions to determine whether the appointed limited guardian has financial interests adverse to serving in the role (In Re: Estate of Andrew F. Rodgers, Pa. Super., No. 898 WDA 2018, 2019 Pa. Super. Unpub. LEXIS 1503).